The Security Council Workaround: How the Iran Deal Can Become Legally Binding Via a UN Security Council Resolution

12 Mar The Security Council Workaround: How the Iran Deal Can Become Legally Binding Via a UN Security Council Resolution

Since the United States has made clear that its “deal” with Iran will NOT be a binding legal commitment under international law, one wonders what all the fuss over the Iran Letter from US Senators was about. As Duncan explains in his great post below, there is little doubt that the President can enter into a nonbinding “political commitment” and withdraw from it without violating international law. Confusingly, though, Iran keeps talking as if there is going to be a binding international legal commitment.

The answer to this confusion appears to be that the US government plans to make a non-binding political commitment, and then take this commitment to the UN Security Council to get it “carved into marble” as a Security Council resolution that would be binding under international law. Jack Goldsmith explains in detail at Lawfare how this might happen, and why this is constitutional (if also kind of sneaky). The President gets to both avoid going to Congress AND get a binding legal obligation on Iran.

Of course, a future President could choose to withdraw or defy the UN Security Council resolution, but the legal and diplomatic costs would be much higher than withdrawing from a mere political commitment. Congress could also, unquestionably, override any domestic legal effects of a UN Security Council Resolution by passing a statute refusing to lift sanctions on Iran, or stopping the President from doing so. Diggs v. Shultz makes clear that a statute passed by Congress later in time than a Security Council resolution will have the force of law by operation of the last in time rule. But the legal and diplomatic costs for doing so would also be higher than for a mere political commitment or even a bilateral executive agreement.

So the Administration has a plan to avoid Congress and get its deal sanctified by international law. Pretty clever lawyering, although I (like Goldsmith) expect some serious political blowback from Congress.

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Marty Lederman

Julian: Is it your view that every time in the past 65 or so years that the Executive branch has complied with a SC Resolution, it has thereby “avoided” Congress? The Senate did, after all, give its advice and consent to the Charter.

I don’t question to the constitutionality of this practice, but I do think that spending two years negotiating an arms control-type “agreement” outside of the Security Council, and then taking it to the Security Council afterwards, is sneaky (though perfectly legal).

Totally agree, Marty. I’ve been making just this point. What if, after all, instead of entering into a “non-binding political commitment” that preceded its codification as a UNSC decision, the parties had just taken the results of their negotiations to the Security Council to memorialize as a binding decision? Would that have provoked this controversy? Why?

While the UNPA might provide the President a source of authority to implement a UNSC decision, depending on the way the UNSCR is styled, I don’t think the President is keen on using those authorities and triggering Congressional outcry. Instead, from the perspective of the White House, the President has substantial statutory authorities at present to suspend the operation of sanctions, license otherwise prohibited activities and/or transactions, and de-designate Iranian entities and persons from OFAC’s SDN List. He will be satisfied with the authorities he does have, and the purpose of the UNSC decision is to render past resolutions inoperative and bind the parties to the agreement as a matter of international law.

3 years ago

Nathanael

It’s pretty standard for the US government to present “fait accompli” deals to the UN Security Council. I’ve considerd it to be questionable for decades, but it’s an established practice, and really the only people who are positioned to complain about it are the *rest* of the Security Council. Who in *this* case will not complain.

3 years ago

Jordan

In accord with Charming Betsy and subsequent cases, the later statute would have to be interpreted consistently with int’l law if at all possible. And if not, U.S. v. Cook and other S.Ct. cases require that Congress express a clear and unequivocal intent to obviate the effect of a treaty (or S.C. res. in this case).

I agree with Tyler Cullis and others that there is nothing controversial or sneaky about this. UNSCR’s on Iran since 2006 have been sui generis, and certainly without regard to approval by the U.S. Congress. Why should the lifting of UNSC prohibitions and sanctions on Iran be any different?

All international actions under the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) of 1968 are enacted as Security Council Resolutions. There is nothing “sneaky” about this. NPT is the basis for non-weapons-State agreements. The current sanctions regime aimed at Iran was enacted as exactly such a Resolution on the 9th of June, 2010. This NPT and the SC mechanisms are what President Johnson, the Senate, and then President Nixon ratified in 1968 and 1969 — requiring no further congressional action. United States has a vote and a veto at the SC. The U.S. Senate has no role whatsoever in SC mechanisms; depicting such a multinational process as a presidential “executive agreement” is simply incompetent. The GOP47 “Open Letter” reflect not understanding the NPT, how treaties work, and international law pertaining to nuclear weapons.